Kumar v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 979
•30 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 979
File number: MLG 165 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 30 October 2023 Catchwords: MIGRATION – Regional Employer Nomination visas – decision of the Administrative Appeals Tribunal – matter listed for a final hearing – where first applicant (and first applicant only) contacted the Court on short notice advising he no longer wanted to proceed with the hearing – where all applicants had left the country – where notice of discontinuance had been signed by only one applicant – application discontinued – appropriate costs amount to be awarded. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), rr 13.01(1) & 13.01(2) and Item 4 in Schedule 2 of Division 2
Migration Act 1958 (Cth), s 476
Cases cited: Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 931 Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 30 October 2023 Place: Perth Applicants: First applicant appeared in person Counsel for the First Respondent: Mr J Mintz Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 165 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AJAY KUMAR
First Applicant
USHA USHA
Second Applicant
REHAAN RANA
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3.The application be discontinued.
4.The first and second applicants pay the first respondent’s costs, fixed in the sum of $5,859.80.
5.Written reasons for judgment to be published from Chambers at a later date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
INTRODUCTION
This matter was listed for a final hearing before the Court at 2.00pm (AEDT) / 11.00am (AWST) on 30 October 2023.
When the matter came before the Court for hearing, the Court made the following orders:
1.Parties have leave to appear by video link pursuant to Division 6 of Part 6 in Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
2.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
3. The application be discontinued.
4.The first and second applicants pay the first respondent’s costs, fixed in the sum of $5,859.80.
5. Written reasons for judgment to be published from Chambers at a later date.
These reasons for judgment are those referred to in order 5 above. They explain why the Court proceeded in the way that it did.
BACKGROUND
Before the Court was an application for judicial review filed in the Melbourne Registry of this Court on 21 January 2019 (the “application”). That application was accompanied by an affidavit which was affirmed by the first applicant on 21 September 2019 (and filed in this Court on 21 January 2019).
The application was brought pursuant to s 476 of the Migration Act 1958 (Cth). By that application, the applicants sought review of a decision made by the Administrative Appeals Tribunal (the “Tribunal”) on 4 January 2019. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (the “Minister”) refusing to grant the applicants Regional Employer Nomination (Permanent) (Class RN) (Subclass 187) visas.
On 22 January 2021, orders were made by Registrar Carlton of this Court programming the matter to a final hearing “on a date to be advised”.
On 17 April 2023, my chambers sent a listing notice to the parties (via email) advising them that the matter had been listed for a final hearing before this Court at 2.00pm (AEDT) / 11.00am (AWST) on 30 October 2023.
On 25 October 2023, Mr Joseph McDonald (“Mr McDonald”) from Clayton Utz (solicitor for the Minister) contacted my Chambers and advised as follows:
We refer to the above proceedings.
We are instructed that the applicant is currently offshore and does not presently have a right of return to Australia.
The applicant has recently contacted us advising that he does not want to proceed to hearing on this matter. A copy of that correspondence, and our reply, is attached. We have not had any further contact from the applicant.
In the circumstances, we are in his Honour's hands as to whether the matter should remain listed for final hearing on Monday 30 October, or re-listed for a directions hearing.
The applicant is copied to this email.
Attached to that email correspondence was correspondence from the first applicant to the Minister’s solicitor dated 19 October 2023 which stated as follows (without alteration):
I would like to inform you that I don’t want to proceed hearing on this matter as I already left country.
That attachment also included a response from the Minister to the first applicant (also dated 19 October 2023) which read as follows:
We refer to the above matter and your below email.
Please note your application for judicial review filed on 21 January 2019 remains on foot.
If you wish to discontinue the proceedings you will need to file a notice of discontinuance with the Federal Circuit and Family Court of Australia via the Commonwealth Courts Portal eLodgment platform. The relevant form is available here, and the Court provides a step-by-step guide to electronic filing here. You can also forward the notice to the Court by email at [email protected] or, if for some reason you cannot file electronically, you may be able to file at a Court registry. In the event you discontinue the proceedings, the Minister intends to seek an order for his costs.
If you have any queries about this process we recommend you seek legal advice.
On 27 October 2023, my Chambers notified the parties that the matter remained listed before the Court and that the correspondence (referenced above) would be discussed with the parties at that time. The parties were also provided with instructions in relation to attendance by video link (using Microsoft Teams).
That same day (also on 27 October 2023), the first applicant emailed my Chambers stating as follows (without alteration):
Please find the attached notice of discontinuation, as I am not in the country anymore and would like to withdraw my appeal . already send a copy to Vic Court to discontinue the appeal.
Please do the needful.
Attached to that email correspondence was a Notice of Discontinuance dated 24 October 2023 and containing a single signature (the “Notice”).
Noting that the unfiled Notice was not signed by all of the applicants, my Chambers responded to the first applicant’s correspondence, confirming to the parties that the matter remained listed before the Court on 30 October 2023.
When the matter came before the Court (on 30 October 2023), the first applicant appeared (via video link) and indicated that he appeared “on behalf of” his family. Mr Jared Mintz (“Mr Mintz”) from Clayton Utz appeared on behalf of the Minister (also via video link).
Correspondence from my Chambers (detailed above) was tendered (together) and referenced as Exhibit 1.
Correspondence between the first applicant and Mr McDonald (referenced above) was tendered and referenced as Exhibit 2.
Correspondence from the first applicant to Chambers dated 27 October 2023 attaching a copy of the Notice was tendered and referenced as Exhibit 3.
The Court confirmed with the first applicant that he would be speaking on behalf of his family at the hearing and asked him to confirm that both he and his family wished to discontinue the proceeding. The first applicant advised the Court that, as he was the main applicant, he would speak on behalf of his family. The first applicant also confirmed that he and his family had already departed Australia and that, on that basis, they no longer wanted to proceed with the matter.
The Court confirmed that it had before it the materials contained in Exhibits 2 and 3 and explained that it had considered the first applicant’s correspondence and the Notice.
The Court explained to the parties that, as set out by this Court in Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 931, a party may discontinue an application by filing a notice of discontinuance in accordance with the approved form: r 13.01(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (the “Rules”). Any such notice may only be filed with the leave of the Court (or a Registrar) if filed within 14 days of a final hearing date: r 13.01(2) of the Rules.
The Court notes, importantly, that while the Notice (provided to my Chambers by email) was on the approved form, the Notice was provided only three days prior to the final hearing date and contained only a single signature (presumably that of the first applicant). There was no correspondence from the second applicant and no confirmation (prior to the hearing) that she also wanted to discontinue the proceedings.
In the circumstances, the Court considered it was more appropriate to have the parties appear before the Court to confirm that both adult applicants agreed to the discontinuance of the proceeding. As set out above, the first applicant confirmed that he was speaking on behalf of his wife and child and that the family wanted to discontinue the proceeding.
On that basis, and taking into account the materials contained in Exhibits 1, 2 and 3, the Court confirmed that it would make an order to allow for the discontinuance of the matter and explained to the first applicant that, where an applicant discontinues a proceeding, the Minister is entitled to seek costs.
The Court asked Mr Mintz what the Minister sought in relation to costs. Mr Mintz sought costs, fixed in the sum of $7,467. He explained that this was the scale amount under a previous version of the Court’s Rules in relation to matters concluded at a final hearing.
The Court did not consider this amount appropriate in circumstances where the final hearing did not proceed. The Court determined that it was more appropriate to award costs in the sum of $5,859.80 (being the amount that the Minister is entitled to seek under Item 4 in Schedule 2 of Division 2 of the Rules – that is, the amount the Minister could seek in relation to a matter which is discontinued less than 15 days before a final hearing).
CONCLUSION
In the circumstances, the Court proceeded to make orders to discontinue the matter and awarded costs to the Minister, as outlined at [2] above.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 3 November 2023
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